Summary
holding that trial court abused its discretion by failing to award child support retroactively, where record demonstrated child's need, and former husband's ability to pay existed when dissolution petition was filed
Summary of this case from Sumlar v. SumlarOpinion
No. 95-1017.
January 31, 1996.
An appeal and cross-appeal from the Circuit Court for Okaloosa County. Ben Gordon, Judge.
E. Jane Brehany of Myrick, Davis Brehany, P.A., Pensacola, for Appellant/Cross-Appellee.
James L. Chase and Keith A. McIver of James L. Chase Associates, P.A., Pensacola, for Appellee/Cross-Appellant.
Timothy J. Beal (husband) and Karen T. Beal (wife) were married on November 4, 1989. Their marriage was dissolved on October 11, 1994. The parties' only child was born on June 24, 1991. The trial judge denied the husband's motion to recuse him, ordered rotating parental custody until the child enters kindergarten, designated the wife the primary residential parent once the child enters kindergarten, and ordered the husband to pay retroactive child support. The judge on rehearing reversed the retroactive child support award. The husband appeals; the wife cross-appeals, raising a number of issues.
We write to address only the issue of retroactive child support. The trial court found that the wife waived her claim to retroactive child support. We however have held: "The law is clear that the parents may not contract away the rights of their child for support. Neither may the mother waive the child's right to support by acquiescing in the father's non-payment of support. Child support is a right which belongs to the child." Armour v. Allen, 377 So.2d 798, 799-800 (Fla. 1st DCA 1979) (emphasis added). The trial court thus abused its discretion in failing to award child support retroactively, because the record shows that the child's need and the husband's ability to pay existed at the time of the filing of the petition for dissolution. See Campbell v. Campbell, 635 So.2d 44 (Fla. 1st DCA 1994).
We affirm in all other respects. Affirmed in part, reversed in part, and remanded.
ERVIN, MINER and LAWRENCE, JJ., concur.